FILOSOFIA THEORETICA VoI. 1 No. 1 Dec.

2011
IGBO JURISPRUDENCE: A DISCOURSE ON THE NATURE OF
PUNISHMENT IN TRADITIONAL AFRICAN SOCIETY
By
Ejikeme Dennis Igwe
Lecturer and Doctoral Candidate,
University of Uyo,
Nigeria
Email: denco_igwe@yahoo.com
1. Introduction
Punishment under law is basically a technique of social control, and
every society has its own means of controlling the social behavior of its citizens in
order to attain its desired goals. A philosophical look at this legal exercise is
called jurisprudence and this is a study of Igbo jurisprudential look at the theory of
punishment. The importance of the legal framework in any society cannot be
overemphasized. The law thus, provides, among other things, the penal technique
by which those found guilty of offences abhorred by the society are punished. The
traditional African society has its body of customary laws, a rich penal system that
governs the affairs of its people. Though largely unwritten, prior to the advent of
the colonialists, this legal system integrated and fostered the unity of various
African societies and ensuring their development.
We shall in this paper, critically assess the notion of punishment as it
relates to traditional Africa with particular reference to Igbo society of Nigeria. In
doing this, we shall consider what punishment is; why punishment is upheld in the
society; who the Igbos are; the traditional Igbo society; and punishment in
traditional Igbo society. Finally, we shall critically analyze the notion of
punishment as it regards traditional Igbo society.
2. Punishment

Punishment is the authoritative imposition of something negative

or unpleasant deemed wrong by an individual or group (Kleining, 259). It
can also be defined as the penalty for wrongdoing. Furthermore, it can be
defined as the authorized imposition of deprivations of freedom or privacy
or other goods to which the person

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otherwise has been found guilty of some criminal violation, typically (though not
invariably) involving harm to the innocent (Currie, 44). Hobbes views it by
reference to imposing pain rather than to deprivations.
From the various definitions given, some points are essential when
dealing with the notion of punishment. First, punishment is an authorized act, not
an accidental or incidental harm. It is an act of the political authority having
jurisdiction over the community, area, state or nation where the wrong occurred or
the crime committed. Second, punishment is constituted by imposing some burden
or by some form of deprivation or by withdrawing some benefit. Third,
punishment is a human institution, not a natural event outside or beyond human
acts or intentions. Fourth, punishment is imposed on persons who are believed to
have acted wrongly. Fifth, there's no particular or single aim or purpose. The
practice, as Nietzsche first observed, is consistent with several purposes or
functions. In other words, it is inconsistent with having no purposes or functions
whatever.
Punishments are applied for various purposes, most generally, to
encourage and enforce proper behavior as defined by society or family. Criminals
are judicially punished by fines, corporal punishment or custodial sentences such
as prison; detainees can further be punished for breach of internal rules. Children,
pupils, students, apprentices and other trainees may be punished by their educators
or instructors (usually parents, guardians, teachers, tutors and coaches). Servants
are also punished by their masters. Employees are also punished by fine or
detention. In organizations such as military and police forces, as well as churches,
rigid internal discipline is maintained in the form of punishment. They also have a
judicial system of their own in the form of court marshal, canonical courts, and
disciplinary panels.
Punishments are carried out for various reasons. In other words, many
possible reasons are given to justify or explain why someone ought to be
punished. First, rehabilitation, to rehabilitate or reform the wrongdoer so that
they will not commit the offence again is one of the reasons given to justify
punishment. The goal is to change the offender's attitude to what he or she has
done, and make him come to see that his behavior was wrong. Second,
deterrence or prevention, deterrence as a justification for punishment is
intended to prevent a re-offence by the offender by imposing a punishment that he
or she wouldn't want to experience again. The aim is also to deter others in the
community from

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committing the same or a similar offence. Third, restoration, punishment, for

minor offences, may take the form of the offender righting the wrong. In more
serious cases, punishment in the form of fines and compensation payment may be
considered a sort of restoration. Fourth, retribution, this is the practice of
getting even with a wrongdoer. Here, the suffering of the wrongdoer is seen as
good in itself, even if it has no other benefits. Retribution sets an important
standard on punishment the offender must get what he deserves, but no more. A
murderer thus, put to death is retribution; a thief put to death is not.
Another justification of punishment is education, punishment can be
explained by positive prevention theory to use criminal justice system to teach
people what are the social norms for what is correct and acts as reinforcement. It
teaches people to obey the law and eliminates the free-rider principle of people
not obeying the law and getting away with it. This is very evident in German
criminal law.
Finally, denunciation or condemnation is another justification for
punishment. Punishment can serve as a means for society to publicly express
condemnation of a crime. Punishment in this way helps to give society a sense of
moral uprightness, tending to confirm its moral right to have a justice system that
exerts punishment on those who do not conform to society's norms.

America. As a result of cultural diffusion experienced at home due to colonial

incursion and neocolonialism and by the Diaspora much influenced by western
culture, much of the traditional practices of the Igbos have undergone serious
modifications. This obviously owes to Igbos receptivity and amenability to change
(Ottenberg, 103).

3. The Igbos
The Igbos form one of the three largest ethnic groups in Nigeria. They
belong to the Negro race in Africa and speak a language that belongs to the Kwa
group of languages found in West and Central Africa (Nwala, 15). In terms of
geographical location, the Igbos are occupying the Southern Nigeria between
latitude 5 to 7 degrees North and longitude 6 to 8 degrees East (Uchendu, 14).
They are bound in the North by the Igala and the Tiv people, in the East by the
Ekoi, in the South by the Annang, the Ijaw and the Ogoni people, and in the West
by the Bini and Isoko people.
The Igbos occupy mainly Eastern part of Nigeria. They are found in high
concentration in Abia, Anambra, Imo, Ebonyi, and Enugu states of Nigeria. There
are also large Igbo populations in Delta and Rivers states. The Igbos are a very
immigrant race. They are in large numbers resident in Northern Nigeria and in old
Ogoja, Calabar, Benin and Lagos. There are also large populations of the Igbos in
Europe and

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4. Traditional Igbo Society

Traditional Igbo political organization was based on a quasi-democratic
republican system of government. This system, in most Igbo communities,
guaranteed its citizens equality, as opposed to a feudalist system with a king ruling
over subjects (Furniss, 65). With the exception of a few notable Igbo towns such
as Onitsha, which had kings called Obi, and places like the Nri kingdom and
Arochukwu which had priest kings, Igbo communities and area governments were
basically ruled by a republican consultative assembly of the common people.
Communities were usually governed and administered by a council of elders. Igbo
culture emphasizes self-reliance, equality among People, democratic processes,
and vigorous competition for social, economic, and political achievement.
Traditional Igbo society consists of independent village groups (confederations of
villages) and city-states (cities and surrounding territory). These communities
were linked by religious and professional groups, a network of markets and
shrines they all shared. Igbo culture, undoubtedly, stems from their worldview. A
worldview represents the sedimentation of a people's conception of the way things
are and how they should be. Kraft (53) in this regard, calls it a control box that
governs the application of the people's conceptualization of their relationships to
reality. Similarly, Okafor sees a people's worldview as the concepts of the basic
notions underlying their cultural, religious and social activities (13). It is a
rational explanation of the order which underlies human lives and the
environment. It is mostly derived from myths, taboos, customs, and proverbs of
the community. People's worldview draws heavily on their surroundings and their
cultural past. It is not static but is constantly being reinterpreted and reformulated
in the light of new experiences within the community and stimuli from external
contacts (Metuh, 49). The worldview of a people helps them in the explanation,
prediction and control of space-time events. To know people's worldview is
basically to understand how the people evaluate

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life and a people's evaluation of life provides them with a charter of action and
justice for behaviour.
The Igbo people of Nigeria also have their worldview, which have much
influence on the way they act, live and have their being. It is crucial to enumerate
some elements of traditional Igbo worldview. The Igbos believe in the existence
of a Supreme Being God whom they call different names according to sub
culture area groups. Among the Igbo names of God are Chukwu, Chineke, and
Obasi bi n'elu. Chukwu is made up of two words: Chi (God) and Ukwu (Big). The
Supreme Being is called Chi-Ukwu to differentiate Him from other gods.
According to Fage (20), it means the biggest Deity of all. Chineke means God
that creates. The people believe that no other deity has the ability to create except
the Supreme Being. Obasi bi n'elu on the other hand, means God who lives
above. The Igbos accept that the Supreme Being lives in the sky, hence, the name,
Obasi bi n'elu.
Among the Igbos, there is a very strong believe in the existence of
divinities. The divinities are generally believed to have come into being in
consequence of the Supreme Being. The divinities are those spiritual beings or
gods that are usually referred to as agbara in many parts of Igboland and they
usually act as servants of God in His theocratic government of the universe. Their
nature is bound up with human experience, hence, they require many temples,
shrines, priests, cults, images and offerings to organize the frequent transactions
between them and mankind. The divinities usually receive worship which shows
man's recognition of their divine nature. The Supreme Being in Igbo Traditional
Religion is approached through the divinities which are regarded as intermediaries
between man and the Supreme Being. It is believed that the divinities derived their
powers and authorities from the Supreme Being. They perform useful functions
and as agents and ministers of God, they assist Him in governing the universe.
Another element of Traditional Igbo worldview is the belief in spirits.
Spirits, the traditional Igbos believe, are good or evil, benevolent or malevolent.
Some of the spirits are conceived from the natural phenomena or forces. To
differentiate divinities from the spirits, shrines are usually built for the divinities
and priests are dedicated to their service. They are regarded as the appropriate
channels through which the Supreme Being could be reached (Awolalu and
Dopamu, 7).
Believe in the ancestors is another element of traditional Igbo

worldview. Ancestors are departed spirits who stand in close relation to their
family or tribe (Anyanwu, 112). The ancestors, though dead, are still regarded as
heads and parts of families and communities to which they belonged while they
were humans. They are believed to intervene in the day to day activities and lives
of their descendants. Finally, belief in magical forces is another element of
traditional Igbo worldview. The traditional Igbo believe that the universe is
charged with some kind of forces which can be harnessed and utilized for the
enhancement of life. This st
rong belief in spiritual
powers or forces constitutes the source of magic, sorcery, witchcraft, and other
forms of occultism. The forces thus, can be used positively and negatively.

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5. Punishment in Igbo Jurisprudence

In order to ensure peaceful co-existence and justice among individuals in
the society, the Igbos have rules of conduct guiding their activities which when
violated, attracts punishment. Punishment thus, comes as a result of crime. Crime
in other words, precipitates punishment, and in order to avert crime, the Igbos
have laws governing them to ensure peace and harmony. The idea of a legal
system thus, is evident in traditional Igbo society. Studies in the nature, sources,
justification and impact of these traditional norms have come to constitute the
subject matter of Igbo jurisprudence but for want of space, we shall not dwell on it
at a subject matter level here. We shall limit however, this inquiry to legal
provisions for punishing offenders who break certain laws in a prototype African
society. Part of what we want to show here is that Africans had a history contrary
to the popular intellectual opinion in the 18th and 19th century Europe. On the
whole, the laws which regulate and govern the lives of Igbos have an ordered
hierarchy and derive from various sources.
Broadly, Igbo laws can be classified into two: Divine laws and Human
laws. Divine laws are laws pertaining to God, divinities, spirits, and ancestors.
The breach of these laws is held to be not only illegal but also an offence against a
supernatural power. Certain remarkable features are characteristic of these laws.
First, they are not written by man, yet, seem to have been written in the hearts of
the Igbos. They are usually referred to as part of the Omenala (custom). Okafor
(45) remarks that the inability to trace these laws to any historical source or any
source whatsoever brings to the fore, the other side of the divine law as the natural
law. As the offences or crimes are basically against God, the

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creator, divinities, spirits, or ancestors, they are regarded as very grave, hence,
attract severe punishments issuing as it were from the divine authority. Third,
violation of divine laws is unpardonable. Offenders cannot escape the wrath of the
supernatural forces. The offenders must be punished, either during their life time
or at the end of it, or even during their next life circle (i.e. when the person
reincarnates).
In Igbo tradition, natural laws govern man, and he is expected to abide by
the dictates of these laws which are the laws of reason. Man by nature, the Igbos
believe, is endowed with reason, therefore, must be rational in dealing with nature.
Rationality serves as a connecting factor between divine law, natural law and
moral law in traditional Igbo society. Moral law for the Igbos, is not distinct from
divine or natural laws. More so, morality and religion overlap in traditional Igbo
thought. Morality within the confines of reason alone possible in western ethics is
abhorred in Igbo tradition. An act in traditional Igbo society is bad or immoral
either because it offends God or the ancestors or because it is contrary to Omenala
(custom of the land). Omenala thus, in this case, becomes the 'grundnorm', using
Kelson's terminology, after which the validity of every other law and norm must
be determined.
Human laws is the second classification of Igbo laws. The Igbos make
laws on a wide range of matters, ranging from economic, social, and political
matters. The Igbos do not have a permanent legislative body or a specialized legal
institution with powers to make laws. Laws are nevertheless, made by Oha (an
adhoc general assembly), Ndi Ichie (elders), or Umunna ( a male line of descent
from a founding ancestor with groups of compounds containing closely related
families headed by the eldest male member).
On economic matters, laws can be made in respect of the use of the market places,
ownership and control of certain economic trees and common natural resources
such as lakes and streams that provide fishes for human consumption and for the
market. On the social aspect, laws can be made to give social directives on the use
and maintenance of public facilities like roads, village squares, springs, etc. Laws
can also be made to ensure political issues, especially to govern the political and
diplomatic relationship between one village and another.
A crime, in Igbo thought, is really an act that breaks the law (divine or
human) and is punishable by law. Crimes in Igboland include: homicide, incest,
suicide, arson, theft, altering of land boundaries,

unmasking a masquerade, adultery, killing or eating of a totem animal, eating food

sacrificed to divinities, sexual relations by a widow while still in the period of
mourning her dead husband, having sexual relations with or marrying an Osu (an
outcast) by a freeborn (diala), a woman climbing a tree, a woman breaking
kolanut, etc.
We shall consider some crimes in relation to how the criminal justice is
administered in traditional Igbo society. The case of homicide in traditional Igbo
society is regarded as very grave, not only against the society but also a violation
of the divine law. Life is believed to have come from God, the creator of the
world. Therefore, shedding another's blood is an abomination aru. Even in times
of war, those who participated in it, especially those involved in killing, undergo
ritual cleansing. In the event of one killing another, such is expected to hang
himself or is banished from the community. If the person flees, his family is
excluded from most community privileges and also have their properties
confiscated. This is usually the case with killing one's kinsman. The case is
different if the murderer is from another village. A typical example is depicted in
Achebe's Things Fall Apart when the wife of Ogbuefi Ezeudo from Umuofia
village was killed by the people of Mbano. The people of Umuofia resolved to be
compensated with a young man and a virgin or embark on war against Mbano.
Okonkwo, a great Umuofia warrior, was delegated by his community to carry the
message to Mbano. Achebe records that Okonkwo returned from his mission two
days later with a young lad of fifteen years old and a young virgin (67). Thus, in
the execution of retributive justice, the young virgin was given to Ogbuefi Ezeudo
as wife while the young lad, Ikemefuna was murdered on the community's wish.
Even in the case of accidental killing, heavy compensation is paid. Punishment
thus, as could be seen above, is both compensatory and expiatory in nature. This
takes care of both the human and divine disharmony created by the offence of
murder. In the case of having no empirical proof for murder, especially murder
through spiritual poisoning or other occult means, the suspect would be required
to swear before a deity that he is innocent. It is believed that after a year or two
and no harm befalls the accused, then he would be acquitted by the supernatural
tribune. Otherwise, the deity or ancestors would either kill him or inflict him with
some grave punishment in the form of blindness, small pox, death of family
members, etc. An alternative to oath swearing

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will be to make the suspect drink the bath water of the deseased in order to prove
his innocence and the effect would be same as in swearing.
The case of incest is another breach of the divine law. Incest is sexual
activity between persons who are bloodily related, as such, cannot be married to
themselves. Often, offenders are sold into slavery as they are thought to have
polluted the land. They have offended the earth goddess. In some Igbo
communities, the culprits are banished for two months. If they are below the age
of eighteen, they are required to bring white fowl each and fetch water and
firewood for the earth goddess priest continuously for two weeks. If they are
adults, besides being banished for a period of three months, they will be required
to bring two fowls, a basket full of yam and cocoa-yam, a pot of palm wine, and a
lump of chalk (Ndubuisi 69). Only then, would the impending danger from the
earth goddess be averted.
Unmasking a masquerade is another serious offence in traditional Igbo
society. The masquerades which perform during important ceremonies are
believed to be the spirits of the ancestors. To unmask a masquerade therefore, is
an abomination, for it is akin to killing an ancestral spirit. Such act, the traditional
Igbos believe, would make the ancestors withdraw their good services from the
community. One guilty of the act is liable to death and his body taken to the forest
and burnt. Theft is also frowned at in traditional Igbo society. A suspected thief is
usually given a public trial at the village square. If found guilty, will be seriously
flogged and sometimes striped naked and decorated with ashes depending on the
gravity of the offence. He will also be fined. More so, he automatically loses
membership of his age grade and other organizations he may belong. He may
however, regain his membership of the associations if proven he had turned a new
leaf.
Adultery is another odious crime in traditional Igbo society. It is
seriously frowned at. It is seen on the part of the woman involved as great
dishonesty and disregard for her husband, and on the part of the man as an
encroachment on the private life of another man. As a punishment, the woman
involved is banished from her husband's home for one month. At the expiration of
the period, she would come in the company of her kindred with two pots of wine,
a basket full of yam and cocoa-yam, and a fowl to apologize to her husband and
his people. If the apology is accepted, she would be reabsorbed into the family
with a strong pledge to be of good behavior. Her male counterpart on the other
hand, is also

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meant to apologize to the woman's husband and his people accompanied by his
own kindred and two pots of wine, a basket full of yam and cocoa-yam, and a
fowl. If he is a titled man, would be striped of all his titles until he is forgiven.
However, he is not banished as the woman.
Lying is another distasteful crime in traditional Igbo society. Lying
entails dishonesty, insincerity and betrayal of trust. A liar is viewed in traditional
Igbo society as one whose character is feeble, a misfit, and a cheat. He is
considered a threat to the wellbeing of the community. Lies in traditional Igbo
society attract fines ranging from yams, fowls, goats, cows and money depending
on the intensity or effect of the lie. A liar is debarred from witnessing and serving
as a member of a committee or panel and could also be suspended from being a
member of the town's union and Age grade.
It is pertinent to state at this point that in traditional Igbo society, in the
case of violation of laws concerning interpersonal relation, the procedure involves
much of human agents. The aggrieved party may first appeal to the head of the
family of the offender or a body of village arbitrators. If this fails, the aggrieved
party may summon the Amala, a higher body than the former with some members
of the extended family and close friends of the litigants in attendance. If this also
fails, other institutions may be appealed to, such as the Age grade, the Dibia
fraternity, various titled societies , town union and Mmanwu (masquerade)
society. When all these fail, then, as a final resort, a submission is made to the
supreme tribunal in form of oath swearing, which after the stipulated period,
would reveal the guilty. The punishments that may ensue include death, ostracism,
banishment, fine and forfeiture of valuable properties.

6. Further Analysis
Obviously, underlying the notion of punishment in any society is the
desire for order and peaceful coexistence without which happiness; the summum
bonum which all men seek becomes a mirage. Law thus, is promulgated, backed
with some measure of sanctions which manifests itself in an organized society in
the form of punishment to achieve peace and harmony. Authorities are constituted
to ensure observance and maintenance of law. Constituted authorities are
therefore, indispensable insofar as peaceful coexistence among men is concerned.
Without constituted authorities, Hobbesian state of nature in which man's life was

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'solitary, poor, nasty, brutish and short' will undoubtedly, be the case. Traditional
Igbo society, much aware of this fact, had constituted authorities that arbitrate in
all matters concerning the members of the community. This manifests in the form
of Ndi Ichie, Umunna, Oha, Age Grade, etc.
From what has been revealed so far on crime and punishment as it
concerns traditional Igbo society, it is obvious that the traditional Igbo society has
an organized system premised on reason contrary to the views of some western
thinkers who hold that Africans lack rationality and are uncivilized. G. W. F.
Hegel, for instance, in his Philosophy of History, postulated that Africans are not
only less developed in civilization and morality, they are less developed
metaphysically. They exhibit the natural man in his completely wild and untamed
state (20). This is false. Punishment in traditional Igbo society is a product of
reason aimed at ensuring peace and harmony in the society just as it is in western
communities; and the punishment is meant to be in proportion to the offence
committed. This, undoubtedly, is justifiable for justice requires that a man should
suffer in proportion to his moral wrongdoing. Murder in traditional Igbo society
which attracted death penalty still stands the test of time; hence, we have capital
punishment practiced in virtually all societies in the globe today. Punishment for
stealing, adultery, incest, and other vices is also crucial to ensuring the unity and
maintenance of the ontological hierarchy leading to peace and harmony. Fair
hearing is accorded to all involved in cases to ensure justice and equity. More so,
none is above the law of the land, hence, titled men are striped of their titles in the
invent of a serious crime. Some are even banished depending on the intensity of
the crime.
Some reservations, however, are expressed. First, is the place of women
in the society. Women in traditional Igbo society do not contribute meaningfully
to the polity. Basically, they are expected to take adequate care of the children and
the kitchen, and not be involved in political matters. This is true as women are not
part of Ndi Ichie, Umunna, Dibia fraternity, Age grade and so on. Second, is the
lack of power separation, the three arms of government Executive, Legislature
and Judiciary tend to be fused in traditional Igbo society. The same group of
people involved in making laws also interprets and enforces the laws. This
contravenes democratic principles. Third, is the much belief in spiritualism,
traditional Igbo society is hyper spiritual! Virtually every

happening is given a spiritual interpretation. This is wrong. Some occurrences can

be naturally explained. This hyper spiritualism has somewhat led to idolatry which
is wrong as the Almighty God is no more the object of worship. Fourth,
punishment in traditional Igbo society could be harmful to the innocent. This is so
because members of the family of a man found guilty of crime sometimes suffer.
When a murderer is banished, he is banished together with his family. This is
wrong for one should bear the consequences of his crime: 'whatsoever a man
soweth, that shall he also reap'. The case of Ikemefuna in Achebe's Things Fall
Apart is very pathetic. The young lad was killed for the crime committed by
others. Finally, oath taking is believed to reveal truth concerning crimes. After
taking an oath, if one dies, falls ill or experiences misfortune within the stipulated
period, it is concluded that such is guilty. This, for us, may not always be true.
Humans as finite beings experience mishap from time to time. So, if one
experiences any within the stipulated period after the oath taking, it is no
convincing proof that he is guilty of the offence. There's no observable necessary
connection between the incident and the oath taking, going by Hume's thesis. As a
finite being, man can experience misfortune at any time; and when it happens, it is
no convincing proof that one who took an oath within the period is guilty. It could
happen by chance.

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7. Conclusion
Punishment in traditional Igbo society is a product of reason to ensure
peaceful coexistence in the society, thereby, averting anarchy and injustice.
Punishment in traditional Igbo society is carried out for various reasons:
rehabilitation, deterrence, restoration, retribution, education, and condemnation.
All these are geared towards giving the community a sense of moral uprightness,
tending to confirm its moral right to have a system that revels on justice and
equity, thus, ensuring happiness for the members of the community. Indeed,
traditional Igbo society has an organized political system premised on reason,
contrary to the views of some western thinkers that Africans are lacking in
rationality and organized political system. However, some problems are
associated with the system such as: nonparticipation of women in political
matters, lack of power separation, hyper spiritualism, and suffering of the
innocent.

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